The Neutrality Thesis and the Rothstein Hearing
(2007) 58 University of New Brunswick Law Review 92
13 Pages Posted: 25 Jan 2014 Last revised: 25 Feb 2014
Date Written: January 1, 2008
Since 2006, individuals nominated to become judges on the Supreme Court of Canada – most recently, Mr Justice Marc Nadon – have been required to answer questions before a committee. These ‘confirmation hearings’ tend to be friendly, non-confrontational affairs in which the nominee ‘introduces’ him- or herself to the Canadian public. The questions themselves rarely probe into the nominee’s judicial philosophy – at least, to more than a superficial degree. The answers tell us little or nothing about how the candidate sees her role in a constitutional democracy, and how she will reconcile her political convictions with the law when the two conflict. The hearings, in other words, are largely pointless, both as an exercise for educating the public about the way judges and the courts work, and as a means of ensuring that a particular judicial nominee will do her job properly.
In this paper, I examine the hearing of Mr Justice Marshall Rothstein – the first Supreme Court of Canada judge to have gone through the process. Though it was later celebrated by a number of scholars as an unmitigated success, I argue that in many respects it was a dismal failure. To explain why, I will draw on the work of Ronald Dworkin, a legal philosopher who wrote extensively on the failings of a number of confirmation hearings in the United States.
Keywords: Supreme Court of Canada, judges, judicial appointments, Ronald Dworkin, Robert Bork, Clarence Thomas
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